Solem v. Solem

• Decision Date: 02 June 2020
• Docket Number: DA 19-0486
• Citation: 464 P.3d 981,2020 MT 141,400 Mont. 186
• Parties: IN RE the MARRIAGE OF: Aleisha SOLEM, Petitioner and Appellant, and Michael Solem, Respondent and Appellee.
• Court: Montana Supreme Court

400 Mont. 186

464 P.3d 981

2020 MT 141

IN RE the MARRIAGE OF: Aleisha SOLEM, Petitioner and Appellant, and Michael Solem, Respondent and Appellee.

DA 19-0486

Supreme Court of Montana.

Submitted on Briefs: March 26, 2020

Decided: June 2, 2020

For Appellant: Mathew Johnson, Mathew Johnson Law Office, P.C., Helena, Montana, Marybeth M. Sampsel, Measure Law, P.C., Kalispell, Montana

For Appellee: Michael J. Uda, Anna M. Kecskés, Uda Law Firm, Helena, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Petitioner and Appellant Aleisha Solem (Aleisha) appeals the Findings of Fact, Conclusions of Law and Order issued by the First Judicial District Court, Lewis and Clark County, on July 25, 2019, which denied her July 10, 2018 Motion to Amend Parenting Plan.

¶2 We affirm, addressing the following restated issue:

Did the District Court abuse its discretion by denying the Motion to Amend Parenting Plan?

FACTUAL BACKGROUND

¶3 Aleisha and Respondent and Appellee Michael Solem (Michael) were married in Indiana in 2008. They moved to Montana in 2010, when Aleisha accepted a job in Helena. Aleisha and Michael have one child together, E.S., who was born in Montana in 2012 and has lived here continuously since her birth. Aleisha and Michael divorced in July of 2015. At that time, they entered into a stipulated parenting plan providing for equal parenting time. Since July 15, 2015, Aleisha and Michael have enjoyed equal parenting time with E.S.

¶4 In July 2018, Aleisha filed a Notice of Intent to Move and a Motion to Amend Parenting Plan along with a proposed parenting plan, which she anticipated coming into force upon her relocation to Indiana. Aleisha's expressed desire to relocate to Indiana was to be closer to her family. Michael responded and objected to Aleisha's notice and motion, and likewise included his proposed parenting plan—anticipating E.S. to remain on a primary basis with him in the event Aleisha relocated to Indiana. The District Court appointed a guardian ad litem (GAL) who filed her report on April 30, 2019. The court held a hearing on July 9 and 10, 2019. Following post-hearing briefing, the District Court denied Aleisha's motion to amend the parenting plan and ordered an amended parenting plan providing that E.S. would remain in Montana and reside with Michael on a primary basis in the event Aleisha decided to relocate to Indiana. Aleisha appeals.

STANDARD OF REVIEW

¶5 We review the underlying findings in support of a district court's decision regarding modification of a parenting plan under the clearly erroneous standard.

Northcutt v. McLaughlin (In re G.M.N.) , 2019 MT 18, ¶ 10, 394 Mont. 112, 433 P.3d 715 (citing Guffin v. Plaisted-Harman , 2010 MT 100, ¶ 20, 356 Mont. 218, 232 P.3d 888 ( Guffin II )). We review a district court's conclusions of law to determine if they are correct. In re G.M.N. , ¶ 10 (citing Tubaugh v. Jackson (In re C.J .) , 2016 MT 93, ¶ 12, 383 Mont. 197, 369 P.3d 1028 ).

¶6 "A district court has broad discretion when considering the parenting of a child, and we must presume the court carefully considered the evidence and made the correct decision." In re G.M.N. , ¶ 11 (citation omitted). It is not the function of this Court to reweigh conflicting evidence or substitute its judgment regarding the strength of the evidence for that of the district court. In re G.M.N. , ¶ 11 (citing In re A.F. , 2003 MT 254, ¶ 24, 317 Mont. 367, 77 P.3d 266 ). The ultimate test for adequacy of findings of fact is whether they are sufficiently comprehensive and pertinent to the issues to provide a basis for decision, and whether they are supported by the evidence presented. In re G.M.N. , ¶ 11 (citing In re Marriage of Wolfe , 202 Mont. 454, 458, 659 P.2d 259, 261 (1983) ). Absent clearly erroneous findings, we will not disturb a district court's decision regarding a parenting plan unless there is a clear abuse of discretion. In re G.M.N. , ¶ 11 (citing In re C.J. , ¶ 13 ).

DISCUSSION

¶7 Did the District Court abuse its discretion by denying the Motion to Amend Parenting Plan?

¶8 In general, a parent seeking to amend a parenting plan, must file a request to amend the parenting plan pursuant to § 40-4-219, MCA, and has the burden of establishing a change in the circumstances of the child has occurred and that the amendment is necessary to serve the best interests of the child. In re Marriage of D'Alton , 2009 MT 184, ¶ 11, 351 Mont. 51, 209 P.3d 251 ("[A] party seeking to modify a parenting plan pursuant to § 40-4-219, MCA, carries a heavy burden of proof." (quoting In re Marriage of Oehlke , 2002 MT 79, ¶ 17, 309 Mont. 254, 46 P.3d 49 (noting the party requesting the modification bears a heavy burden because the statute's policy is to preserve stability and continuity for the child))). The court is then directed by § 40-4-219, MCA, to consider the criteria in § 40-4-212, MCA, as well in determining the child's best interests. If the amendment is sought because of a parent's intention to move, that parent is additionally required to give notice pursuant to § 40-4-217, MCA. Section 40-4-220, MCA, provides the moving party who seeks amendment of a final parenting plan to submit an affidavit, together with the moving papers, setting forth facts supporting the requested amendment and provides the other parent to submit opposing affidavits. The court shall deny the motion unless it finds adequate cause for hearing is established by the affidavits, based on the best interests of the child, in which case it shall set a date for hearing.

¶9 In cases where a parent seeks to relocate with a child, we have held courts must "consider the custodial parent's fundamental right to travel[.] ... The custodial parent who bears the burdens and responsibilities of raising the child is entitled, to the greatest possible extent, to the same freedom to seek a better life for herself or himself and the children as enjoyed by the noncustodial parent." In re Marriage of Cole , 224 Mont. 207, 213, 729 P.2d 1276, 1280 (1986) (citations omitted); Collie v. Pirkle (In re M.C.) , 2015 MT 57, ¶ 13, 378 Mont. 305, 343 P.3d 569. In such cases we have found that the parent seeking the restriction must provide case-specific reasons and evidence pertaining to the child rather than general discussion about the effects of relocation on children. In re M.C. , ¶ 14.

¶10 However, "the custodial parent's freedom is qualified by the special obligations of custody, the state's interest in protecting the best interests of the child, and the competing interests of the noncustodial parent."

Cole , 224 Mont. at 213, 729 P.2d at 1280. Both parents generally have co-equal fundamental constitutional rights to co-parent their children to the extent reasonably possible under the circumstances. Troxel v. Granville , 530 U.S. 57, 65-67, 120 S. Ct. 2054, 2059-61, 147 L.Ed.2d 49 (2000) ; Stanley v. Illinois , 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212-13, 31 L.Ed.2d 551 (1972) ; Erger v. Askren (In re A.R.A.) , 277 Mont. 66, 70-71, 919 P.2d 388, 391 (1996), superseded in part by statute as stated in Kulstad v. Maniaci , 2009 MT 326, ¶ 56, 352 Mont. 513, 220 P.3d 595 ; In re Guardianship of Doney , 174 Mont. 282, 286, 570 P.2d 575, 577 (1977), superseded in part by statute as stated in Kulstad , ¶ 56. Sections 40-4-212, -217, and -219(1), MCA, collectively embody and effect Montana's compelling interest in furthering and protecting the best interests of children by facilitating "the maximum opportunit[y] for the love, guidance[,] and support of both" parents to the extent reasonably possible under the circumstances. In re M.C. , ¶ 13 (quoting Cole , 224 Mont. at 213, 729 P.2d at 1280 ). See also Sable Commc'ns of Cal., Inc. v. F.C.C. , 492 U.S. 115, 126, 109 S. Ct. 2829, 2836, 106 L.Ed.2d 93 (1989) ; New York v. Ferber , 458 U.S. 747, 756-57, 102 S. Ct. 3348, 3354, 73 L.Ed.2d 1113 (1982).

¶11 Cole and its progeny did not alter or affect the relative burdens of proof on the moving and non-moving parties under §§ 40-4-219 or -212, MCA. As a preliminary matter, Cole did not involve or address the scenario at issue here where a court has previously determined a particular joint or shared custody scheme based on the best interests of the child and the only subsequent change in circumstances for modification under § 40-4-219(1), MCA, is that one of co-equal custodial parents elects to move to another state. Cole more narrowly addressed a parent's right to travel as an important consideration, among others (including the child's rights and best interests, the State's compelling interest therein, and the other parent's co-equal right to parent his or her child) in determining the best interests of the child in an initial parenting plan determination under § 40-4-212, MCA. Cole , 224 Mont. at 210-13, 729 P.2d at 1278-81. Even in the initial parenting plan determination context, Cole stands for no more than the proposition that the best interests of the child remain paramount under § 40-4-212, MCA, and that, upon a moving party's showing that relocation with that parent is in the best interests of the child, the burden shifts to the non-moving party to counter that initial showing with "sufficient proof" that it is in the best interests of the child to remain with the non-relocating parent. See Cole , 224 Mont. at 213, 729 P.2d at 1281. Contrary to the apparent assertion of Justice Baker's Dissent, Cole and In re M.C. are thus entirely consistent with our analysis in In re G.M.N. Accordingly, while the parent seeking amendment of the parenting plan has the burden of proof under § 40-4-219(1), MCA, to establish amendment of the parenting plan is in the child's best interest, in parental move cases the objecting party also has a responsive evidentiary burden to bring forth case-specific facts as to why the amendment should not be granted.

¶12 Cases involving a proposed relocation of a parent with a child are difficult as they are rarely amenable to compromise...